Since just after 9/11, the U.S. government has greatly increased its surveillance of possible terrorist activity. Critics argue that the term dragnet truly applies: The government tosses a net out to see what it might pull in. But, sometimes the government inadvertently catches people doing possibly illegal, but not terrorist, acts. Can the government use such information to criminally prosecute someone even though it gathered the information without a proper criminal search warrant? It can, it does, and it is a vast expansion of governmental power.
One month after the coordinated attacks on September 11, 2001, Congress greatly enhanced the powers of the nation’s intelligence agencies and removed certain legal constraints on surveillance. On October 11, 2001, Congress passed the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”), which (among many other things) loosened the restrictions on how and how much personal information about citizens and non-citizens the government could seek.
The intelligence-gathering restrictions were originally put in place to prevent intelligence agencies and law enforcement from using broader anti-terrorism surveillance laws to conduct criminal investigations and thereby do an end-run around the constitutional constraints that protect criminal suspects.
To a great extent, the restrictions arose in response to the different standards for intelligence surveillance/searches and searches in criminal investigations. For the issuance of an intelligence surveillance warrant for electronic monitoring (“wiretap”), the government had only to show probable cause that the target was “the agent of a foreign power.” By contrast, the standard for a criminal wiretap is probable cause that the target is committing a particular and identified criminal offense. Before the enactment of the Patriot Act, courts drew a distinction between intelligence warrants and criminal warrants. The reason for this distinction was to prevent the FBI or other agencies from using an intelligence warrant to fish for evidence of criminal offenses (instead of obtaining criminal search warrants, which would have required a higher showing of probable cause).
The Patriot Act effectively destroyed that distinction, by allowing warrants to be issued where evidence sought in an “authorized investigation” is a “significant purpose” of the warrant, but not necessarily the only purpose. Under the Act, warrants can be issued for both intelligence and criminal investigations. In short, the Patriot Act allows criminal surveillance of U.S. citizens without the heightened showing of probable cause that is required for a criminal search warrant under the Constitution. Of course, the government must have some grounds for asserting that the target of such a surveillance/search the subject of an authorized investigation, but in practice the government need not offer much to the special court set up to issue such warrants. In some instances, federal and local authorities have conducted surveillance of individuals attending services at mosques.
As many of us learned after former government contractor Edward Snowden released intelligence documents, U.S. intelligence agencies monitor virtually all electronic communication and collect so-called “metadata” (such as email addresses, phone numbers, time, and duration of calls) from service providers. Under the Patriot Act, the restrictions on surveillance of internet and telephone communications are even looser than other types of surveillance.
When the government launches an investigation under the more relaxed rules of the Patriot Act, agents may turn up evidence of activity that violates state or federal criminal laws but is not terrorism. How might this play out for a person who breaks the law but is not trying to bring down the U.S.?
Imagine this scenario: Petra Googles “ammonium nitrate fertilizer.” Then she searches for a distributor and buys twenty 50-pound bags over the internet. Petra also emails Jared, a member of an “off-the-grid” community. Jared happens to write what he calls an “anarchist’s blog” calling for an end to legal regulation of drugs. Petra’s search for and purchase of fertilizer gets the attention of an FBI agent who obtains a warrant based on his on-going investigation of home-grown terrorist cells.
The agent uses the warrant to search all of Petra’s email records, where he discovers the communication with Jared. The agent also gets a warrant to examine Petra’s bank records and notices a large influx of cash in recent months. All of this leads to Petra’s arrest and the discovery by law enforcement that, while Petra is no terrorist, she is a marijuana farmer with a few prime acres in Mendocino County, California, where Jared sold her a solar-powered timer for her sprinkler system. Without the initial internet surveillance, Petra might not have hit the radar of local law enforcement (the Mendocino sheriff has an ambivalent attitude toward growers who don’t cause problems). But, thanks to the Patriot Act, Petra is going to jail.
But, the Patriot Act does not limit broad government’s searches to electronic data; it also literally opens your front door to the FBI.
Under the 4th Amendment to the Constitution, the government cannot search your home without a warrant obtained from a court after a presentation of its probable cause that you are involved in a criminal activity. Under the Patriot Act, the government can search your home without that warrant so long as it leaves “notice” that it was there.
If a citizen has donated to an organization that the government considers to be affiliated with a possible terrorist organization, an FBI agent may take a stroll through his abode while he’s away, leaving a calling card at some point to notify him of the search. While the agent is there, she may notice that the homeowner has what may be child pornography (photos of his child frolicking naked in a kiddy pool). The agent could use that evidence to expand her investigation and try to seize other materials, such as the homeowner’s computer, to search for more illicit material. She may even examine his local library records to see what books he’s checked out (woe to him if he re-read Lolita recently).
The Patriot Act can vastly complicate a criminal case and even affect how the defendant’s attorney is allowed to represent the defendant. If you have questions about the Patriot Act, talk to a criminal defense attorney with experience in defending such matters.